Newsletter Issue 95

Governance: Disclosure of criminal allegation and acquittal in the context of an Enhanced Criminal Record Certificate;
Employment: TUPE – HMRC now applying NMW penalties to new employer; TUPE – ‘transfer of economic entity’ and ‘administrative reorganisation’; Menopause policies and employer support; Victimisation and bad faith;
Procurement: House of Commons Library briefing paper published;
Charity: Code of Fundraising Practice;
FAQ: Contracts – Do under-18s have capacity to enter into contracts? Read Full Article…

Charity: Code of Fundraising Practice

On 7 September 2018, the Fundraising Regulator announced a Consultation on the Fundraising Code. The consultation concentrates on the style, presentation, clarity and accessibility of the code. The code together with the rulebooks for street, door-to-door and private site fundraising, outline the standards expected of all charitable fundraising organisations across the UK. The intention is to enable fundraisers to use and understand the code confidently and with ease to ensure compliance. Existing feedback indicates that the code could benefit from a thorough review to deal with the following matters: • Clarify the purpose of the code and to whom it applies • Ensure the language of the rules is clear and consistent • Define key terms used in the code to ensure there is a consistent understanding • Review the order of the code, identify gaps, and strengthen cross-referencing with relevant guidance • Avoid repetition between rules and reduce the number of sections • Emphasise more clearly the importance of general rules that apply to all fundraisers as well as those that only apply to specific forms of fundraising • Provide closer links with case studies and good practice examples • Clarify which parts of the code are applicable across the different legal jurisdictions of England, Wales, Scotland and Northern Ireland, particularly in regard to the proposed changes • Bring Read Full Article…

TUPE: ‘transfer of economic entity’ and ‘administrative reorganisation

The conjoined cases of (1) Mrs S Nicholls (2) Ms E Schwartz v (1) London Borough of Croydon (2) Ms J Hacker and Others: UKEAT/0003/18/RN and (1) Ms J Hacker and Others v (1) London Borough of Croydon (2) Mrs S Nicholls (3) Ms E Schwartz  UKEAT/0004/18/RN provide legal clarity on the scope of the ‘administrative reorganisation’ exclusion from the ambit of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).   Under regulation 3(5) of TUPE, if a transfer constitutes an administrative reorganisation of public administrative authorities, or the transfer of administrative functions between public administrative authorities, then such circumstances are not within its scope.   This case arose when 14 employees assigned to a public health team were transferred from a Primary Care Trust to a local authority under bespoke legislation that essentially mirrored TUPE.  In contrast to TUPE, however, it contained time limits for asserting a claim.  The local authority imposed changes to the employees’ terms and conditions that ultimately resulted in dismissals.  The employees sought to bring claims for unfair dismissal under TUPE, as opposed to the bespoke legislation, as the time limits under the bespoke legislation had expired.  Under TUPE, dismissals by reason of a TUPE transfer, or for a reason relating to such a transfer, are ‘automatically unfair’ (unless the reason relates to Read Full Article…

Governance: October deadline for publication of plans under British Sign Language (Scotland) Act 2015

The British Sign Language (Scotland) Act 2015  (the ‘Act’) came into force in October 2015.  The Act aims to promote the use and understanding of British Sign Language (BSL) through the use of ‘National Plans’ to be published by the Scottish Ministers, and ‘Authority Plans’ to be published by each of the ‘listed authorities’.   Section 6 states that any reference to a ‘listed authority’ is to a (Scottish) public authority listed or described in the Schedule to the Act.  This includes ‘A body which is a “post-16 education body” for the purposes of the Further and Higher Education (Scotland) Act 2005.’   The Scottish Government Equality Unit has issued guidance and templates (the ‘Guidance’) specific to various types of organisation, including Scottish HEIs, to help them publish Authority Plans in accordance with the Act.   According to Section 3(1) of the Act, a listed authority must publish its first Authority Plan as soon as is reasonably practicable after the first National Plan is published, and in any case within no later than 12 months.  Scotland’s first National Plan was published on 24 October 2017.  Listed authorities therefore have until 23 October 2018 to publish their Authority Plans.   Section 2(2) states that an Authority Plan should: set out measures to be taken by the listed authority in relation to the Read Full Article…

Governance: UUK issues good practice briefing on student contracts

Universities UK (UUK) have published a briefing which aims to look at the development of student contracts and set out good practice recommendations.  According to UUK, the briefing builds on the Competition and Markets Authority (CMA) consumer law advice for higher education providers.  UUK stresses that the briefing is ‘not intended as legal advice for compliance with consumer law or the CMA’s existing guidance‘.   UUK states that, although the briefing is ‘motivated by the ongoing regulatory interest in student contracts in England’, its principles of good practice are intended to be applicable across the UK.   According to the briefing, the core underlying principles of the student contract should include:   ensuring that the terms and conditions of the contract are fair providing course information that is clear, consistent and quantifiable providing other material information, including avenues for complaints in the case of English HEIs, integrating other relevant registration conditions such as protection plans and student transfer agreements   UUK recommends that, in the future development of student contracts, providers should consider how such contracts can:   build on existing practice and guidance on consumer regulations and presentation of course information be embedded in the local relationship between a university and their students and their representatives and advisors provide students with the information necessary to progress in their studies Read Full Article…